State v. Whitaker

STATE OF NEBRASKA, APPELLEE, v. MATTHEW L. WHITAKER, APPELLANT.

No. A-19-561.

NEBRASKA COURT OF APPEALS

April 21, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Dixon County: PAUL J. VAUGHAN, Judge. Affirmed.

Frederick T. Bartell, of Fitzgerald, Vetter, Temple, Bartell & Henderson, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

MOORE, Chief Judge.

INTRODUCTION

Matthew L. Whitaker appeals from his plea-based conviction in the district court for Dixon County for operating a motor vehicle during a license revocation period. The court sentenced Whitaker to imprisonment for a term of 13 to 14 months to run consecutive to the sentence in another case, imposed a 15-year license revocation to run concurrent with the revocation in the other case, and allowed Whitaker to apply for an ignition interlock permit after 45 days if otherwise eligible. On appeal, he asserts that the court imposed an excessive sentence, that the court failed to comply with the necessary truth in sentencing advisements, and that he received ineffective assistance of trial counsel. For the reasons set forth herein, we affirm.

BACKGROUND

On November 20, 2018, the State filed an information in the district court, charging Whitaker with operating a motor vehicle during a license revocation period, a Class IV felony. That same day, the State filed an amended information, adding a charge of leaving the scene of a property damage accident, a Class II misdemeanor, and a charge of willful reckless driving, a Class III misdemeanor.

On March 25, 2019, Whitaker pled guilty to the first count of the amended information (operating a motor vehicle during a license revocation period). In exchange for Whitaker's guilty plea, the State agreed to dismiss the other two counts of the amended information and stand silent at sentencing. The district court advised Whitaker of his constitutional rights including the right to a speedy jury trial, to confront any witnesses, and to be free from self-incrimination. The court also advised Whitaker of the nature of the charge, the possible penalties if the court accepted the plea, and the additional consequences of pleading guilty. Whitaker affirmed that he understood the court's advisements and that his plea was his own free and voluntary act. Whitaker assured the court that nobody had threatened him, used force, or made any promises to get him to waive his rights and plead guilty. He also affirmed that he had sufficient time to discuss the case with his attorney, that he told him everything he knew about the case to formulate an appropriate defense, and that he was satisfied with the services that the attorney provided.

The State provided the following factual basis for Whitaker's plea:

On March 29, 2018, [an officer], of the Nebraska State Patrol, was dispatched to [a hospital] in Sioux City, Iowa, regarding [Whitaker] who reportedly had been involved in a rollover motor vehicle accident.

The officer went to the hospital, he did visit with . . . Whitaker, who admitted that he was driving on a county road west of Hubbard, Nebraska, when the crash occurred.

The officer contacted another witness as well who confirmed that . . . Whitaker was the driver of the vehicle.

He then went to the scene, which, although west of Hubbard, was in a location that was in Dixon County, Nebraska. Further investigation did show that . . . Whitaker's driver's license was revoked for 15 years for a DUI fourth on December 17th, 2012, and that at the time of the accident it was still under revocation.

And these events occurred in Dixon County, Nebraska.

After Whitaker affirmed its correctness, the district court then found beyond a reasonable doubt that there was a factual basis for the plea; that Whitaker fully understood his rights and freely and voluntarily waived them; and that he understood the nature of the charge, the consequences of his plea, and the penalties that could be imposed. After the court found that Whitaker's plea was made freely, voluntarily, knowingly, and intelligently, it accepted his plea and found him guilty of operating a motor vehicle during a license revocation period. The court ordered an updated presentence investigation report (PSR) and scheduled sentencing.

At the sentencing hearing on May 13, 2019, the district court noted that it had received the PSR. Neither party had any additions or corrections to make to it. Pursuant to the parties' plea agreement, the State remained silent at sentencing. In his argument, Whitaker's attorney asked the court to impose a concurrent jail sentence with Whitaker's sentence in a Dakota County case. In Whitaker's allocution to the court, he also requested a jail sentence concurrent to that imposed in the Dakota County case and expressed regret for his actions. He also told the court that he was"doing all [he could] to rectify [his] behavior and change [his] thinking to help [his] addiction," including going to NA and AA twice a week while incarcerated.

Before sentencing Whitaker, the district court stated:

[T]he [PSR] reflects that this event that you're being sentenced for today happened on March 29th of 2018, and then about two months later is when you got arrested in Dakota County for your fifth offense drunk driving case that you're now serving a sentence on.

The [PSR] reflects that at the time law enforcement was dealing with you in the hospital in Sioux City . . . they thought that you were under the influence of alcohol. Your lack of cooperation there made it difficult for law enforcement to pursue this case.

You shouldn't have been driving at all in the first place . . . but you did end up injuring yourself and having to deal with the consequences of that.

I'm glad to hear that you're starting to address the addiction issues that you have that have gotten you into trouble and that you're using the time that you're at the State facility to get benefit of any programs that they're offering to you.

Overall the Court does not feel that a concurrent sentence would be appropriate in this matter. This is a separate crime. It happened two months before the case that you're serving now. So the Court's not willing to impose a concurrent sentence.

The court then sentenced Whitaker to 13 to 14 months' imprisonment, to be served consecutively to his Dakota County sentence, along with a 15-year license revocation to begin immediately and to run concurrent with the license revocation in the Dakota County case. The court also ordered that after 45 days, Whitaker could apply for an ignition interlock permit if otherwise eligible.

ASSIGNMENTS OF ERROR

Whitaker asserts, restated, that (1) the district court abused its discretion by imposing an excessive sentence, imposing a consecutive sentence, and not ordering probation; (2) the court abused its discretion and erred by failing to provide the necessary truth in sentencing advisements and to expressly state its reasons for denying him probation; and (3) he received ineffective assistance of trial counsel when his counsel failed to file a motion to suppress, bring the matter to trial, and object to the above assigned errors.

STANDARD OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). When reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusivelydetermine whether counsel did or did not provide effective assistance, and whether the defendant was or was not prejudiced by counsel's alleged deficient performance. Id.

ANALYSIS

Excessive Sentence.

Whitaker asserts that the district court abused its discretion by imposing an excessive sentence, imposing a consecutive sentence, and not ordering probation. Operating during revocation is a Class IV felony. Neb. Rev. Stat. § 60-6,197.06 (Cum. Supp. 2018). Class IV felonies are punishable by a maximum of 2 years' imprisonment, 12 months' postrelease supervision, and/or a $10,000 fine, and 15-year license revocation and a minimum of 9 months' postrelease supervision if imprisonment is imposed. Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2018) and 60-6,197.06. The court sentenced Whitaker to imprisonment for a term of 13 to 14 months to run consecutive to the sentence in the Dakota County case, imposed a 15-year license revocation to run concurrent with the revocation in the other case, and allowed Whitaker to apply for ignition interlock permit after 45 days. Because his sentence was consecutive with the sentence imposed in the Dakota County case, which included a sentence of imprisonment for a Class II felony, no postrelease supervision was required in this case. See Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016). Thus, Whitaker's sentence was within the statutory limits.

Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as...